Price v. City of N.Y. 39 40 15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018) hours, and with the prisoner outside in the Alabama summer sun without a shirt, water, or bathroom breaks. The Supreme Court held that state prison regulations and a report of the U.S. Department of Justice that criticized the "hitching post" practice — in addition to federal appellate authority addressing similar, but by no means identical situations — were sufficient to clearly establish the law and put the guards on notice that their conduct was unlawful. Id. at 741-42. The Court explained that "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. at 741; see *39 also United States v. Lanier, 520 U.S. 259, 271 (1997) ("There has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability." (alteration in original) (citation omitted)). In so doing, the Supreme Court rejected the Eleventh Circuit's requirement that, for qualified immunity purposes, the previous cases holding the conduct to be unlawful must be "materially similar" to the case at bar, Hope, 536 U.S. at 739, and cautioned against "the danger of a rigid overreliance on factual similarity," id. at 742. Instead, the Supreme Court held that the "salient question" is whether the state of the law at the time of the subject incident gave public officials "fair warning" that the conduct was unlawful. Id. at 741. see Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014), and none has cited its "novel circumstances" holding in almost nine years, see Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377-78 (2009). The Supreme Court has never overruled Hope, but its retreat from that decision is palpable.16 Two where the officer was not found to have years after Hope was decided, the Supreme Court characterized that case as standing for the narrow proposition that the absence of federal appellate authority supporting a claim is not fatal in cases where the *40 constitutional violation is "obvious." See Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). And despite the wave of Supreme Court cases addressing (and granting) qualified immunity in recent years, no Supreme Court majority has cited Hope in the qualified immunity context for approximately four years, numbers omitted)). 16 Academic literature reflects this assessment. See, e.g., Karen Blum et al., Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633, 654 (2013) ("The Court's language in Hope is clearly more 'plaintifffriendly,' but since that decision, the 'fair warning' formula has been virtually ignored by the Supreme Court." (citation omitted)); Daniel K. Siegel, Clearly Established Enough: The Fourth Circuit's New Approach to Qualified Immunity in Bellotte v. Edwards, 90 N.C. L. Rev. 1241, 1252 (May 2012) (discussing the modern trend among the circuits to require a case on point for law to be clearly established); see also Tahir Duckett, Unreasonably Immune: Rethinking Qualified Immunity in Fourth Amendment Excessive Force Cases, 53 Am. Crim. L. Rev. 409, 429 (Spring 2016) ("[Hope] applies only to actions that 'obviously run afoul of the law,' and it has rarely been applied. Only once has a Supreme Court Justice applied [Hope] to conclude that an officer was put on notice in novel factual circumstances, and it was in a dissent. And only once has the Supreme Court applied [Hope] to a case qualified immunity." (footnote call In this action, Plaintiff argues that Brooks and Obe are not entitled to qualified immunity because, generally speaking, government officials should know that viewpoint discrimination is unlawful in any forum. (Pl. Opp. 13). But the Supreme Court has repeatedly instructed lower courts "not to define clearly established law at a high level of generality." Kisela, 138 S. Ct. at 1152 (citations and quotation marks omitted); see also White v. Pauly, 137 S. Ct. 548, 552 (2017); Plumhoff, 134 19